Ten Questions to a Media Lawyer: Mike Grygiel
Mike Grygiel is currently a Shareholder with the Albany Office of Greenberg Traurig, LLP, and is Co-Chair of the firm’s National Media and Entertainment Litigation Group.
How did you get interested in media law?
As a student at Hamilton College, I enrolled in the standard undergraduate survey course on constitutional law and civil liberties, and found the First Amendment cases and doctrine fascinating. This was at a time when the Nazis-marching-in Skokie case was percolating towards the U.S. Supreme Court, and I was having difficulty accepting the proposition that, under our constitutional system, free speech rights were necessarily extended to those who, if they held political power, would certainly deny the same First Amendment freedoms to the majority of citizens. On the day of graduation, I was invited to a breakfast discussion about the Skokie case with Aryeh Neier of the ACLU, who represented the Nazis and was the recipient of an honorary degree from the College in recognition of his efforts. Despite my youthful concern that the First Amendment should not be permitted to devolve into an alluring abstraction that masks over asymmetries of political power and socioeconomic inequalities, Neier’s painstaking explanation of his commitment to First Amendment indivisibility was instructive. Although it has once again become fashionable in certain circles to disavow his position, I have come to believe that an expansive conception of First Amendment liberty embracing strict viewpoint-neutrality empowers the disenfranchised and marginalized members of society while protecting against intolerance and oppression. I understand that not everyone sees it the same way given the proliferation of disinformation on social media platforms.
What was your first job in the business?
In the late 1980s, I was a litigation associate in the Washington D.C. office of what was then Nixon, Hargrave, Devans & Doyle, where 95 percent of my work focused on First Amendment cases. Although my time at the firm was comparatively brief, I had the privilege of learning how to practice law from Jack McCrory, Bob Bernius, and Robb Jones, three exceptional First Amendment lawyers who were extremely (and deservedly) well regarded in the media defense bar. I tried to absorb as much of their knowledge and experience as I could. Those lessons have endured.
What’s your most memorable case or experience in media law?
There are several, including GT’s work in successfully defending comedian Kathy Griffin in three significant cases — two venued in Kentucky, and one in Tennessee —over the past couple of years that sought to punish her for speaking out on matters of legitimate public interest. In each of these matters, GT obtained threshold dismissals of defamation and a potpourri of other tort claims that had targeted Ms. Griffin based on her provocative Twitter commentary. I am extremely proud of these results and the fact that Ms. Griffin never even had to answer a single complaint before the cases were tossed. I would be remiss in not acknowledging the invaluable assistance provided by my friends and colleagues Jack Greiner and Robb Harvey leading to these expedited dismissals, who were GT’s respective local counsel, but much more than that as equal partners and collaborators in motion practice and briefing strategy.
Two Second Circuit cases come also to mind. The first, Lugosch v. Pyramid Co., 435 F.3d 110 (2d Cir. 2006), established a presumptive First Amendment right of access to court records in civil cases. Lugosch is a leading public access precedent that is widely cited for the controlling constitutional standards when civil litigants seek to file documents under seal and, indeed, is referenced in NDNY’s Local Court Rules and the individual court rules of certain judges in EDNY and SDNY for that purpose. The second is Gannett Media Corp. v. United States, 2022 U.S. App. LEXIS 35099, 2022 WL 17818626 (2d Cir. 2022), where the Second Circuit reversed the district court and ordered the unsealing of briefing filed by the government pertaining to prosecutorial misconduct in a high-profile financial fraud case. This decision was gratifying because the district court was sharply — and, in my view, unjustifiably — critical of our motion to intervene for the purpose of making these judicial documents available to the press and public.
Are you able to maintain a decent work-life balance? What are some rules you follow?
When our children were younger and competing in various sports, I was conscientious about attending and volunteering at their various athletic events and school activities. But now that they are all grown and out of the house, maintaining a work-life balance has actually become more difficult. My wife Molly and I schedule dinner out together one night a week. There are no specific rules that I follow and, honestly, there’s almost nothing I would rather be doing than gearing up and engaging with my GT colleagues to defend a complicated defamation case. It’s a privilege to have one’s work be satisfying and rewarding — sentiments likely generalizable to the MLRC’s members. As I suspect most readers of this piece are, I’m an inveterate First Amendment law geek, plain and simple.
If the Supreme Court decides to review New York Times v. Sullivan, and you are asked to argue the case, is there a swing Justice who you would hope to win over?
The premise of this question is more than worrisome, but also contemplates an opportunity devoutly to be wished by a First Amendment lawyer. While certainly conversant with Justice Thomas’s and Justice Gorsuch’s recent dissents from denials of certiorari that called for Sullivan to be overturned (albeit for different reasons), I was nevertheless secure in the knowledge that the glass was 7/9ths full, viewing Sullivan as a landmark decision integral to the First Amendment’s architecture and immune from destabilization. But given last year’s controversial decisions in Dobbs and Bruen, accompanied by the dismantlement of the wall of separation in the Religion Clause cases (Carson v. Makin and Kennedy v. Bremerton Sch. Dist.), it seems that the ascendant Supreme Court majority’s emphasis on originalism as the prevailing mode of constitutional interpretation could very well lead to an erosion of Sullivan if not its outright abandonment. With that understanding, I would focus on Justice Amy Coney Barrett as a potential swing vote, particularly because her track record with First Amendment decisions while on the Seventh Circuit was relatively sparse with no clear throughline, and also in recognition of the fact that Justice Scalia, for whom she clerked on the Court, was no fan of Sullivan.
What was the best piece of career advice you were ever given?
The lawyers I worked with early in my career (see answer to 2, above) impressed upon me — more by example than by words — the importance of always keeping your clients’ interests and objectives first and serving those interests and objectives to the best of one’s ability. Numerous of my colleagues at GT have underscored the same point, day in and day out. I have done my personal and professional best to adhere to that principle.
Any unique hobbies (past or present)?
I played basketball in high school and college and, after being distanced from the sport for many years, have become a diehard fan of Hamilton College’s basketball team. Even at the D-III level, the athleticism today is nothing short of amazing — on last year’s squad, every player except one could dunk — and the competition is intense. I usually travel on weekends during the season to watch the Continentals’ home games. Suffice to say that I am disproportionately emotionally invested in the team’s success.
After graduating from college, I became a semi-serious road (running) racer for several years, in events ranging from 5,000 to 15,000 meters. However, following three knee surgeries, the orthopedic surgeon has forbidden me from any further running — existential bummer. Notably, my brother Steve finished 15th in the Boston Marathon in 1985, and my sister Sarah still holds the Hamilton College indoor 3,000 meter record — which dates back to 1982, showing how strong it is. And my brother Andrew ran cross-country at the University of Rochester. So there’s a tradition of competitive distance running among my siblings. Although he never ran competitively, my youngest brother Jack was an extraordinarily gifted athlete. Playing boys hoops in high school, he could elevate like nobody’s business and had no trouble dunking. Today he lives in Orlando where he regularly wins his share of tennis matches against a group of former professionals.
In my more youthful days, I was also an accomplished golfer. My father and grandfather were both professional golfers, and one of my cousins played on the PGA Tour in the 1980s. Regrettably, a combination of injuries and other time commitments have kept me off the links for the past few years, but I do miss playing and hope to pick it up again in the future.
This may come as a surprise to some people, but I’m a huge rock ‘n roll fan, and usually attend six to eight concerts a year, sometimes traveling considerable distances to do so. The next Dave Matthews’ Band concert I see will be number 26 or 27 — I’ve lost count. I hope the MLRC’s members don’t think less of me for that! A good college friend who works in the music business advises that the Stones will do a 60th Anniversary tour in the U.S. this year. I plan to be there.
What journalist, judge, or lawyer (contemporary or historic) would you most like to have lunch with and what would you order?
This is a tough one, because there are so many wonderful choices. I would opt to go back in time and have lunch with Supreme Court Justice Robert H. Jackson, who also held the positions of U.S. Solicitor General and U.S. Attorney General, an unmatched trifecta of government service. Justice Jackson was from Jamestown, New York, which I identify with as an Upstater, and of course wrote the magisterial majority opinion in West Va. St. Bd. of Educ. v. Barnette, while also famously dissenting in Korematsu v. United States. As his eloquent — and elegant — judicial writings demonstrate, Justice Jackson was the consummate legal stylist (e.g., “We are not final because we are infallible, but are infallible only because we are final.”). After receiving the appointment from President Truman in 1945 as U.S. Chief Counsel, Justice Jackson took a leave of absence from the Court to prosecute Nazi war criminals at the Nuremberg trials. Having said all of this, I’m not sure what I would order, but lunch with Justice Jackson would require me to depart from my undeviating daily routine of two Clif Bars and an apple at my desk — a source of both amusement and chagrin to my GT colleagues, and which my kids think is just downright weird.
What television show, movie, book or podcast do you want to finish before the end of summer?
I’ve managed to read a few books this summer. Maggie Haberman’s detailed portrayal of former President Trump in Confidence Man was like porn for political junkies. I also enjoyed Joan Biskupic’s recent book titled Nine Black Robes, which focuses on the institutional and jurisprudential changes wrought in the Supreme Court by the current conservative six-vote majority and was very entertaining. Her account presents a surprising amount of granular inside baseball, meaning that internal sourcing was involved. Finally, a legal academic friend suggested that I read Critical Legal Studies: A Liberal Critique by Andrew Altman, which offers a thoughtful response to the CLS position that the standard conception of the rule of law cannot serve — and in the strongest form of the argument, actually disserves — the ends to which democratic political theory assigns it. While a slender volume, this was admittedly not an easy read, but the patience and discipline needed to work through the arguments were in my judgment worth the effort.
What would you have done if you hadn’t been a lawyer?
In order of preference: law professor, college basketball coach, or GM of the Boston Red Sox. I’ve accepted a part-time (one day a week) adjunct faculty position with Cornell Law School’s First Amendment Clinic starting in January 2024, so the first choice is about to become a reality. I’m greatly looking forward to this opportunity to get into the classroom with a group of supremely talented law students, because a very enjoyable part of my job is working with the young lawyers in the firm’s Media and Entertainment Litigation Practice and (hopefully) contributing to their growth and development. Whether the other two career options remain viable is better left to the discernment of the MLRC’s membership.